APPEALS from a judgment and orders of the Superior Court of Los Angeles County, Soussan G. Bruguera, Judge. New trial order reversed, judgment affirmed, and appeal from order denying motion for judgment notwithstanding the verdict dismissed. (Los Angeles County Super. Ct. No. BC303466).
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Richard Alonzo Bell suffered severe injuries when he lost control of his 1996 BMW Z3 roadster convertible while driving on a freeway transition road. He and his wife, Ema Baraka Wright-Bell (collectively Plaintiffs), sued Bayerische Motoren Werke Aktiengesellschaft and BMW of North America, LLC (collectively Defendants). After the jury returned a special verdict in favor of Defendants on negligence and products liability counts, the trial court granted Plaintiffs' new trial motion but denied their motion for judgment notwithstanding the verdict. Defendants appeal the new trial order. Plaintiffs appeal the judgment and the denial of their motion for judgment notwithstanding the verdict.
We conclude that the trial court prejudicially erred by granting a new trial based on inadmissible statements in juror declarations, that the record does not justify a new trial on the grounds stated by the trial court, and that the new trial order cannot be affirmed on other grounds. We also conclude that Plaintiffs have shown no prejudicial error in the judgment. We therefore will reverse the order granting a new trial and affirm the judgment. We will dismiss Plaintiffs' appeal from the denial of the motion for judgment notwithstanding the verdict as abandoned.
FACTUAL AND PROCEDURAL BACKGROUND
Bell was driving along a curve on a freeway transition road on a Sunday morning in November 2002, when the tail end of his car suddenly slid out. He turned the steering wheel in the direction of the slide and accelerated, but his car continued to slide. He then slammed on the brakes and lost control of the car. His car rolled over twice down a dirt embankment and landed upright. He suffered serious injuries when his head came into contact with the ground through the soft top of his convertible. Bell, who is six feet tall, was wearing his seatbelt at the time.
David Kang was driving a van nearby at the time of the accident. According to Kang, Bell's car struck hard against the passenger side of his van, and his van came to a stop. Kang walked over to Bell's car and spoke to Bell.
2. Complaint, Trial and Judgment
Plaintiffs filed a complaint against Defendants and others in October 2003, alleging counts against Defendants for negligence, strict products liability, and breach of warranty. A jury trial against Defendants alone commenced in July 2007. The court instructed the jury on some matters before the presentation of evidence, including that the jury must not consider whether any party had insurance.
Plaintiffs presented evidence at trial that Defendants' product testing had shown that an occupant of a Z3 would experience head-to- ground contact in the event of a rollover, but that Defendants had decided not to complete the development of a rollover protection system. Plaintiffs also introduced a brochure for the Z3 stating that safety was "a cornerstone of BMW's philosophy" and that "in the event of a rollover, double-tube reinforced windshield pillars help protect occupants." The owner's manual and advertising also espoused the vehicle's safety.
Kang testified on direct examination by Plaintiffs' counsel that after his van came to a rest, "I went over to the driver and said, `Are you okay?' " The following exchange occurred on cross-examination by Defendants' counsel:
Defendants' counsel: "Now, when you walked back to talk to the driver of the BMW, you went back to find out whether he had insurance, didn't you?"
Kang: "Yes, I did. I did. I asked him if --"
Plaintiffs' counsel: "Objection, your honor."
The court: "-- just stop for a second?"
Defendants' counsel: "I'm sorry. Your honor, I apologize"
The court: "Okay. So, ladies and gentlemen, would you disregard that question and we'll just go ahead? Thank you."
Plaintiffs' counsel moved for a mistrial based on the reference to insurance. The court took the matter under submission. The court denied the motion 17 days later during a conference on jury instructions.
The court instructed the jury on counts for negligence, design defect based on consumer expectations, and design defect based on failure to warn. The parties stipulated that a rollover accident was a foreseeable use or misuse of the car.
The special verdict form stated, in relevant part:
"Did the 1996 BMW Z3 have potential risks that were known or knowable through the use of scientific knowledge available at the time of manufacture and/or distribution?
"If your answer to question 1 is yes, then answer question 2. If you answered no, go to question 7.
"Did the potential risks present a substantial danger to users of the 1996 BMW Z3?
"If your answer to question 2 is yes, then answer question 3. If you answered no, go to question 7.
"Would ordinary consumers have recognized the potential risks?
"If your answer to question 3 is no, then answer question 4. If you answered yes, go to question 7.
"Did the BMW defendants fail to adequately warn of the potential risks?
"If your answer to question 4 is yes, then answer question 5. If you answered no, go to question 7.
"Was the 1996 BMW Z3 used or misused in a way that was reasonably foreseeable to the BMW defendants?
"If your answer to question 5 is yes, then answer question 6. If you answered no, go to question 7.
"Was the lack of sufficient warnings a substantial factor in causing harm to plaintiffs?
"If your answer to question 6 is yes or no, then answer question 7. "QUESTION NO. 7
"Did the BMW defendants know or should they reasonably have known that the 1996 BMW Z3 was dangerous or was likely to be dangerous when ...